Citation NR: 9609500
Decision Date: 04/05/96 Archive Date: 04/16/96
DOCKET NO. 89--14 350 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a heart condition.
2. Entitlement to service connection for residuals of Agent
Orange exposure to include boils, rashes, prostate problems,
nightmares, sweats, hallucinations, bad temper, disciplinary
problems, loss of teeth, bone deterioration and heart
disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C.A. Skow, Associate Counsel
INTRODUCTION
The appellant served on active duty from October 1967 to
October 1969.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a July 1988 rating decision of the St.
Petersburg, Florida, Department of Veterans Affairs Regional
Office (VARO).
This matter previously came before the Board in January 1990
and was remanded for compliance with Nehmer v. United States
Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 2,
1989), for consideration under the new dioxin and radiation
exposure law and regulations. Subsequently, VARO issued a
rating decision dated May 1994 which denied service
connection for a heart condition and residuals of Agent
Orange exposure.
In February 1995, the matter was again before the Board and
remanded for an Agent Orange examination, a general medical
examination, and further development of a claim for PTSD. At
this time, the Board noted that the appellant’s December 1988
notice of disagreement encompassed the denial for service
connection for PTSD in November 1988 and that a statement of
the case had not yet been issued with respect to the PTSD
claim.
Thereafter, VARO apparently attempted to comply with the
terms of the Board remand, however, returned mail indicated
that the appellant was no longer at the address of record.
Returned mail was stamped “forwarding address expired.”
The matter was subsequently returned to the Board and, in
August 1995, the Board remanded the case in an effort to
locate the appellant and for a VA dermatological examination
as well as further development of the PTSD claim which was
previously unaccomplished because of the appellant’s unknown
whereabouts. The remand decision also indicated that VARO
should readjudicate the claim for PTSD and issue a statement
of the case.
Later records reveal that attempts by VARO to locate the
appellant were unsuccessful; the appellant’s representative
was unaware of the appellant’s whereabouts and the
appellant’s phone number had been disconnected.
Additionally, apparently because notice could not be
accomplished, the appellant failed to report for his
scheduled VA examinations in October 1995.
At this time, the case has again been returned to the Board
for a determination of the appellant’s claim. The following
decision addresses the issues of service connection for a
heart condition and residuals of Agent Orange exposure. We
find that the issue of service connection for PTSD is not
within the scope of this appeal since a statement of the case
and a substantive appeal with respect to the PTSD claim have
not been made. See §38 C.F.R. § 20.202 (1995).
We note that the February and August 1995 remand order
required VARO to readjudicated and issue a statement of the
case with respect to the PTSD claim. This was not
accomplished and, therefore, it is referred to VARO for
appropriate action to include consideration of the claim’s
abandonment under 38 C.F.R. § 3.158 1995).
Additionally, we note that the Board will address the merits
of he appellant’s claim for service connection for a heart
condition and residuals of Agent Orange exposure
notwithstanding his failure to report for the VA examinations
since the regulations provide that a claim shall be based on
the evidence of record when a claimant fails to report for an
examination scheduled in conjunction with an original
compensation claim.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he developed a heart condition
due to service. He further contends that he suffers
residuals of Agent Orange exposure to include boils, rashes,
prostate problems, nightmares, sweats, hallucinations, bad
temper, disciplinary problems, loss of teeth, bone
deterioration and heart disease.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence which is sufficient to
justify a belief by a fair and impartial individual that the
claim to service connection for a heart condition is well
grounded. It is further the decision of the Board that the
claim for service connection for residuals of Agent Orange
exposure to include boils, rashes, prostate problems,
nightmares, sweats, hallucinations, bad temper, disciplinary
problems, loss of teeth, bone deterioration and heart disease
is denied as a matter of law.
FINDINGS OF FACT
1. The appellant served on active duty from October 1967 to
October 1969. DD 214 shows that he had combat service in
Vietnam; he may be presumed to have been exposed to Agent
Orange under 38 C.F.R. § 3.307(a)(6) (1995).
2. Service medical records are negative for a heart
condition. Post service medical records are negative for any
relationship between the appellant’s heart condition,
objectively shown nearly 20 years after service discharge,
and service.
3. Post service medical record are negative for diseases
associated with certain herbicide agents, listed in 38 C.F.R.
§ 3.309(e) (1995).
CONCLUSIONS OF LAW
1. The appellant has not submitted evidence of a well
grounded claim for service connection of a heart condition.
38 U.S.C.A. §§ 1101, 1110, 5107 (West 1991 & Supp. 1995);
38 C.F.R. § 3.303 (1995).
2. As a matter of law, the claim for entitlement to service
connection for residuals of Agent Orange exposure to include
boils, rashes, prostate problems, nightmares, sweats,
hallucinations, bad temper, disciplinary problems, loss of
teeth, bone deterioration and heart disease is denied.
38 U.S.C.A. § 1116 (West 1991 & Supp.); 38 C.F.R.
§§ 3.307(a), 3.309(e) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant served on active duty from October 1967 to
October 1969. Service records reflect that he served in the
Republic of Vietnam. Service medical records are negative
for complaints, findings, or manifestations of a heart
condition or recognized residuals of Agent Orange exposure.
A family history of heart trouble was noted by the appellant
on his self-completed report of medical history.
In April 1988, the appellant requested service connection for
a heart condition and residuals of Agent Orange exposure.
The pertinent evidence received in support of his claim is
discussed as follows.
Private medical records dated February 1987 to March 1988
show treatment for a heart condition. In February 1987, the
appellant sustained an acute myocardial infarction with mild
congestive failure. A temporary transvenous cardiac
pacemaker was inserted. In April 1987, coronary
arteriosclerotic heart disease with 100 percent occlusion was
diagnosed along with left ventricular dysfunction. Cardiac
catheterization was performed. Significant history of
smoking was noted. In August 1987, the appellant was seen on
a follow-up basis for his heart condition. At that time, he
complained of the development of a rash on the upper arms and
back. Examination revealed 1-2 millimeter papular lesions on
the upper arms and mid-lower back. The examiner stated that
the rash did not appear to be a drug reaction and a
dermatology consultation was planned. Subsequent treatment
records were negative for dermatologic complaints and
findings. In January 1988, the appellant was hospitalized
for paroxysmal atrial fibrillation with rapid ventricular
response. Examination revealed no evidence of skin
pathology. It was noted that the appellant recently resumed
smoking. Diagnostic studies were performed. The conclusions
were (1) severe left ventricular dysfunction with akinesis of
the septum, (2) no evidence of thrombosis, (3) moderate left
atrial, right atrial and questionable borderline right
ventricular enlargement, (4) mild mitral insufficiency, (5)
minimal tricuspid insufficiency, (6) evidence of low stroke
volume and cardiac output, (7) and questionable pulmonary
hypertension.
Multiple lay statements of record from friends and family
reflect that the appellant had psychological problems
manifested by drinking, depression, and sleep difficulties.
The appellant’s wife further indicated that the appellant had
heart problems, boils and rashes, loss of teeth due to bone
deterioration, and prostate problems.
In a statement dated April 1989, the appellant reported that
he had boils, rashes, prostate problems, nightmares, sweats,
hallucinations, bad temper, disciplinary problems, loss of
teeth, bone deterioration and heart disease due to Agent
Orange exposure in service.
Heart Condition
The appellant is seeking service connection for a heart
condition. For service connection to be granted, it is
required that the facts, as shown by the evidence, establish
that a particular injury or disease resulting in chronic
disability was incurred in service, or, if pre-existing
service, was aggravated therein. 38 U.S.C.A. § 1110 (West
1991 & Supp. 1995); 38 C.F.R. § 3.303 (1995). Moreover, a
current disability must be shown which has a definitive
relationship with an injury or disease or event in service.
Rabideau v. Derwinski, 2. Vet.App. 141, 143 (1992).
The threshold question to be answered at the outset of the
analysis of any case is whether the appellant's claim is well
grounded; that is, whether it is plausible, meritorious on
its own, or otherwise capable of substantiation. Murphy v.
Derwinski, 1 Vet.App. 78 (1990). If a particular claim is
not well grounded, then the appeal fails and there is no
further duty to assist in developing facts pertinent to the
claim since such development would be futile. 38 U.S.C.A
§ 5107(a) (West
1991 & Supp. 1995).
Although where a claim is not well grounded the VA does not
have a statutory duty to assist a claimant in developing
facts pertinent to the claim, the VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his application. This obligation depends on the
particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim. Robinette v.
Brown, 8 Vet.App. 69 (1995). Here VARO fulfilled its
obligation under section 5103(a) in a February 1989 statement
of the case wherein the appellant was informed of the reasons
his claim had been denied.
An appellant has, by statute, the duty to submit evidence
that a claim is well grounded. 38 U.S.C.A. 5107(a) (West
1991 & Supp. 1995). Where such evidence is not submitted,
the claim is not well grounded, and the initial burden placed
on the appellant is not met. See Tirpak v. Derwinski, 2 Vet.
App. 609 (1992). Evidentiary assertions by the appellant
must be accepted as true for the purposes of determining
whether a claim is well grounded, except where the
evidentiary assertion is inherently incredible. See King v.
Brown, 5 Vet.App. (1993). In this case, the appellant's
evidentiary assertions as to the presence of a heart
condition related to service is inherently incredible when
viewed in the context of the total record.
A review of the evidence of record discloses no objective
medical findings for a heart condition in service or soon
after service discharge. The first objective evidence of a
heart condition was on private treatment records dated
February 1987, nearly 20 years after service discharge.
Additionally, we note that the private medical reports of
record do not establish a definitive relationship with an
injury or disease or event in service.
The Board acknowledges the appellant’s belief that a causal
relationship exists between the development of a heart
condition and his period of service. However, as a layman
the appellant is not competent to offer opinions on medical
causation and, moreover, the Board may not accept unsupported
lay speculation with regard to medical issues. See Espiritu
v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay
assertions of medical causation cannot constate evidence to
render a claim well grounded. Grottveitt v. Brown, 5 Vet.
App. 91, 93 (1993).
Where there is no medical evidence of the claimed disorders
during service, or where there is no medical evidence linking
the claimed disorder to service or an in-service event, the
claim is not well grounded. See Rabideau v. Derwinski,
2 Vet.App. 141, 143 (1992), and Fields v. Derwinski, 90-933
(U.S. Vet. Dec. 2, 1991).
Residuals of Agent Orange Exposure
With respect to claim for service connection based on Agent
Orange exposure, there are specific regulatory provisions
which must be satisfied. The VA has determined that service
connection based on exposure to herbicides used in Vietnam
may only be presumed for those conditions which it has found
a positive association between the condition and such
exposure. 59 Fed.Reg. 341 (1995). If a veteran was exposed
to an herbicide agent during active military, naval, or air
service, the following diseases shall be service connected if
the requirements of 38 C.F.R. § 3.307(a)(6) (1995) are met,
even though there is no record of such disease during
service, provided further that the rebuttable presumption
provisions of 38 C.F.R. § 3.307(d) (1995) are also satisfied:
Chloracne or other acneform disease consistent with
chloracne; Hodgkin’s disease; non-Hodgkin’s lymphoma;
porphyria cutanea tarda; multiple myeloma, respiratory
cancers (cancers of the lung, bronchus, larynx or trachea),
and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1995). A
disease associated with exposure to certain herbicide agents,
listed in 38 C.F.R. § 3.309 (1995) will be considered to have
been incurred in service under the circumstances outlined in
that section even though there is no evidence of such disease
during the period of service. 38 C.F.R. § 3.307(a) (1995).
The United States Court of Veterans Appeals has held that the
concept of “well grounded” is limited to the character of the
evidence submitted by the claimant. In those cases where the
law and not the evidence is dispositive, the claim should be
denied on the basis that there is an absence of legal merit
or that the claimant lack entitlement under the law. Sabonis
v. Brown, 6 Vet.App. 426 (1994).
In the instant case, the appellant has argued that he is
entitled to service connection for residuals of Agent Orange
exposure to include boils, rashes, prostate problems,
nightmares, sweats, hallucinations, bad temper, disciplinary
problems, loss of teeth, bone deterioration and heart
disease. However, these conditions are not among those
listed under the applicable regulation. Therefore, based
upon Sabonis, we find that the appellant has not established
entitlement under the law to the benefit sought. Under these
circumstances, the appellant’s claim for service connection
for residuals of Agent Orange exposure to include boils,
rashes, prostate problems, nightmares, sweats,
hallucinations, bad temper, disciplinary problems, loss of
teeth, bone deterioration and heart disease, fails as a
matter of law and is denied.
ORDER
Having found the claim not well grounded, the appeal of
service connection for a heart condition is denied.
Service connection for residuals of Agent Orange exposure to
include boils, rashes, prostate problems, nightmares, sweats,
hallucinations, bad temper, disciplinary problems, loss of
teeth, bone deterioration and heart disease is denied.
C.P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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